REPORT
CBD: The unmaking of a treaty

A convention whose formulation brought together developing countries as a unified bloc now faces the unfortunate proposition of disjointed Southern representation.

by S Faizi

The Convention on Biological Diversity (CBD) has been one of the hard negotiated international treaties as the negotiators from the South displayed unusual unity and negotiation skills. Negotiated amidst the global political ambience of the emerging unipolar world order and the unopposed Western war on Iraq; the result was a fairly balanced treaty that accommodates the legitimate interests of both the South and North. Formulated in 1992 at the Earth Summit in Rio de Janeiro, this was touted as a comprehensive strategy for ‘sustainable development’. The Convention establishes three main goals: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits from the use of genetic resources.

But perhaps that is all that could be said of the Convention. More than a decade after its entry into force, its achievements remain volumes of repetitive documents, endless surrealistically named committees and fissiparous meetings. While the CBD process indulged in its own virtual world, in the real world biopiracy remained unabated. The proceedings of the recently held seventh meeting of the Conference of Parties (CoP) do not leave room for much hope either. The Kuala Lumpur meeting (February 2004), in fact, marked another retrogressive step in terms of enforcement. The Convention unequivocally recognises national sovereign rights over biodiversity, requires prior, informed consent for access to biodiversity and stresses that such access should be based on naturally agreed terms. CBD also stipulates that any commercial benefit derived out of the use of biodiversity should be equitably shared with the providing country, effectively making biopiracy an international offence, and setting the fundamental legal framework for providing access to biodiversity and benefit sharing.

However, these hard negotiated provisions of the Convention were ingeniously undermined by the North, skilfully sidestepped by the Convention Secretariat, and blissfully ignored by the parties from the South. As a result species after species have been misappropriated from the biorich South, worked on and patented, all of it in violation of the treaty.

The centrepiece of the Kuala Lumpur meet was the decision to develop an ‘international regime’ for access to biodiversity and benefit sharing. Such a decision was the culmination of a lengthy process initiated at the third CoP. While the basis for access and benefit sharing has been clearly laid out in the convention and it unconditionally requires the parties to take ‘legislative, administration or policy measures’ to facilitate benefit sharing with the providing countries (Article 15.7), this new exercise would only help the developed countries to circumvent the legally binding requirements for benefit-sharing as provided in the convention, apart from providing an excuse for continued inaction on this count.

Article 15.7 reads:
Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms.

Developing countries have, in fact, been tricked into asking for an international regime, while they should actually have been asking the CoP to review the implementation (or lack of it) of the relevant articles on access and benefit sharing, especially Article 15.7. By agreeing to negotiate the international regime, developed countries hope to re-open issues that have already been settled in the convention. For instance, they already object to calling the proposed regime a ‘legally binding’ one, while indeed the Convention has provided legally binding provisions for Access and Benefit-sharing (ABS).

United South
There has been a drastic weakening of the negotiating position of the developing countries, which is disappointing considering the unusual strength maintained by them in the CBD formulation negotiations. In retrospect, it was this strength that enabled the developing countries to totally reject the IUCN (The World Conservation Union)–drafted articles and underlying notions that states are simply ‘guardians or custodians’ of biodiversity (and not owners); payment of a levy to a proposed international fund for biodiversity use within their territory; placing the principal emphasis on ‘access’ to biodiversity, and so on. In its clamouring for a convention on biodiversity in the late 80s, the key objective of the United States was to legalise free and open access to the biodiversity of the Southern countries before they could institute protective measures. It was indeed a remarkable achievement of the Southern negotiators that they were able to discard the IUCN draft articles and the notions contained therein that formed the broad Western negotiation position. It was the united and resourceful negotiations by the South that gave birth to a balanced CBD, eliminating the prospect of a treaty for subjugating the most important resource of the South. (It is this North-South balance of CBD that prompted the US, the original initiator of the convention proposal, to stay away from the treaty).

But such unity and efficiency have withered since the treaty has come into force. Developing countries have since remained largely reactive and at best defensive. At Kuala Lumpur, the G-77 arrangement was ineffective, due in part to the late decision on its chair. The half-minded partners did not have any significant technical support and the regional group meetings of Asia and Africa were largely composed of monologues.

The conference adopted new programmes of work on protected areas, mountain biodiversity and technology transfer. The protected areas programme is a means to achieve the 2010 target of significantly reducing the loss of biodiversity, set by the 2002 World Summit on Sustainable Development (WSSD) in Johannesburg, South Africa. Although the role of indigenous and local communities is factored in, there was no departure from the exclusionary doctrine of protected areas. While the pro-gramme on technology transfer seeks to promote ways to enable the transfer of appropriate technologies to developing countries, the debate on the subject did not address the issue of how the parties have complied with the obligation under the convention to ‘take legislative, administrative or policy measures’ to transfer technology including those protected by intellectual property rights, on mutually agreed terms, and to take exactly similar measures to facilitate such technology transfers from the private sector (Article 16.4). This is another instance of compromising on the convention’s legally binding provisions. The conference adopted guidelines for the sustainable use of biodiversity, biodiversity-related tourism and environmental impact assessment of development projects on the territories of indigenous peoples.

The West has never been comfortable with the CBD’s recognition of national sovereign rights over biodiversity. In a panel discussion organised by the United Nations University and CBD Secretariat on the sidelines of the CoP, one was surprised to hear Vincent Sanchez, the former Chilean Ambassador who had fairly effectively chaired the negotiation to formulate the convention, expressing discomfort with the sovereignty provision. Supporting the expected argument of an American delegate on the subject, he observed that the sovereignty issue had ‘suddenly cropped up’ in the negotiations. One wonders as to when was it that the resources, and for that matter anything else, within the territory of a nation were regarded as a global resource, that is, in a post-colonial world.

At least for some, the global resource argument has been the result of confusing biodiversity with the subject of a prolonged debate within the FAO parlance wherein the subject was ‘genetic resources appropriated from the South and held in the seed/gene banks in the North’. Within the FAO fora, the South took the lenient position of regarding these translocated genetic resources as a global resource, while the North opposed access for the South to these resources. And these resources remain untouchable to CBD too by having denied retrospective effect to CBD Article 15.3 which states:

For the purpose of this Convention, the genetic resources being provided by a Contracting Party, as referred to in this Article and Articles 16 and 19, are only those that are provided by Contracting Parties that are countries of origin of such resources or by the Parties that have acquired the genetic resources in accordance with this Convention.

However, the Nairobi Final Act that adopted the final text of CBD had regarded the issue of access to pre-CBD ex situ collections as an outstanding matter and hence called on the FAO system to address this issue (Resolution 3). But the subject of CBD’s sovereignty provision is the opposite and simple: a country’s own biodiversity within its territory.

The indigenous communities have come a long way in playing a significant role in the CBD process. They have turned out in fairly good numbers and were reasonably well organised. However, one was disappointed to see a small segment of indigenous groups being influenced by fund-wielding Western agencies in shaping their positions. India has the largest population of indigenous people (whom the minority ruling castes refuse to recognise as indigenous) yet there was none to represent them at the CoP. Several affluent Western NGOs are listed as collaborators in implementing the protected areas programme. This is obviously an arbitrary listing and may set an unpleasant precedent. In actual fact, these NGOs, though they operate on the international scale on the strength of their funds, do not have an open membership, democratic election of leadership or adequate representation of citizens from the South in their governance structures. One fervently hopes that such arbitrary recognition of NGOs will not set a precedent.

Emil Salim who chaired the UN preparatory meeting for the Johannesburg Summit asked his colleagues on the podium, in desperation, at the adjournment of an inconclusive session during the critical final meeting of the committee, “What shall we do with the US?” (Salim had forgotten to switch his microphone off and the next day NGO representatives appeared at the meeting venue wearing T-shirts with the quote printed). How could CBD achieve the 2010 target of substantially reducing the loss of biodiversity without bringing the country with the largest number of endangered reptilian, amphibian and fish species in the world into its ambit? Nobody has raised the issue of bringing the United States to accede to the convention, not even the Ministerial Declaration which has called on all countries to accede to the Biosafety Protocol. It may not be entirely true that delegates were happy not having the intimidating voice of the US in the negotiation halls. The United States can be brought into the fold of the treaty only if a forthcoming CoP decides not to provide access to biodiversity for non-parties.

The CBD represents a fair international legal mechanism available for the sustainable management of biodiversity, but its implementation would depend on the strength that a unified South could gather in the future negotiations.